We are anonymous, we are legion

Legislating for Privacy - Part II

bhairav — 2014-05-28T09:59:56Z

Apart from the conflation of commercial data protection and privacy, the right to privacy bill has ill-informed and poorly drafted provisions to regulate surveillance.

The article was published in the Hoot on May 20, 2014.

In October 2010, the Department of Personnel and Training ("DOPT") of the Ministry of Personnel, Public Grievances and Pensions released an ‘Approach Paper’ towards drafting a privacy law for India. The Approach Paper claims to be prepared by a leading Indian corporate law firm that, to the best of my knowledge, has almost no experience of criminal procedure or constitutional law. The Approach Paper resulted in the drafting of a Right to Privacy Bill, 2011 ("DOPT Bill") which, although it has suffered several leaks, has neither been published for public feedback nor sent to the Cabinet for political clearance prior to introduction in Parliament.

Approach Paper and DOPT Bill

The first article in this two-part series broadly examined the many legal facets of privacy. Notions of privacy have long informed law in common law countries and have been statutorily codified to protect bodily privacy, territorial or spatial privacy, locational privacy, and so on. These fields continue to evolve and advance; for instance, the legal imperative to protect intimate body privacy from violation has now expanded to include biometric information, and the protection given to the content of personal communications that developed over the course of the twentieth century is now expanding to encompass metadata and other ‘information about information’.

The Approach Paper suffers from several serious flaws, the largest of which is its conflation of commercial data protection and privacy. It ignores the diversity of privacy law and jurisprudence in the common law, instead concerning itself wholly with commercial data protection. This creates a false equivalency, albeit not one that cannot be rectified by re-naming the endeavour to describe commercial data protection only.

However, there are other errors. The paper claims that no right of action exists for privacy breaches between citizens inter se. This is false, the civil wrongs of nuisance, interference with enjoyment, invasion of privacy, and other similar torts and actionable claims operate to redress privacy violations. In fact, in the case of Ratan Tata v. Union of India that is currently being heard by the Supreme Court of India, at least two parties are arguing that privacy is already adequately protected by civil law. Further, the criminal offences of nuisance and defamation, amongst others, and the recently introduced crimes of stalking and voyeurism, all create rights of action for privacy violations. These measures are incomplete, – this is not contested, the premise of these articles is the need for better privacy protection law – but denying their existence is not useful.

The shortcomings of the Approach Paper are reflected in the draft legislation it resulted in. A major concern with the DOPT Bill is its amateur treatment of surveillance and interception of communications. This is inevitable for the Approach Paper does not consider this area at all although there is sustained and critical global and national attention to the issues that attend surveillance and communications privacy. For an effort to propose privacy law, this lapse is quite astonishing. The Approach Paper does not even examine if Parliament is competent to regulate surveillance, although the DOPT Bill wades into this contested turf.

Constitutionality of Interceptions

In a federal country, laws are weighed by the competence of their legislatures and struck down for overstepping their bounds. In India, the powers to legislate arise from entries that are contained in three lists in Schedule VII of the Constitution. The power to legislate in respect of intercepting communications traditionally emanates from Entry 31 of the Union List, which vests the Union – that is, Parliament and the Central Government – with the power to regulate “Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication” to the exclusion of the States. Hence, the Indian Telegraph Act, 1885, and the Indian Post Office Act, 1898, both Union laws, contain interception provisions. However, after holding the field for more than a century, the Supreme Court overturned this scheme in Bharat Shah’s case in 2008.

The case challenged the telephone interception provisions of the Maharashtra Control of Organised Crime Act, 1999 ("MCOCA"), a State law that appeared to transgress into legislative territory reserved for the Union. The Supreme Court held that Maharashtra’s interception provisions were valid and arose from powers granted to the States – that is, State Assemblies and State Governments – by Entries 1 and 2 of the State List, which deal with “public order” and “police” respectively. This cleared the way for several States to frame their own communications interception regimes in addition to Parliament’s existing laws. The question of what happens when the two regimes clash has not been answered yet. India’s federal scheme anticipates competing inconsistencies between Union and State laws, but only when these laws derive from the Concurrent List which shares legislative power. In such an event, the ‘doctrine of repugnancy’ privileges the Union law and strikes down the State law to the extent of the inconsistency.

In competitions between Union and State laws that do not arise from the Concurrent List but instead from the mutually exclusive Union and State Lists, the ‘doctrine of pith and substance’ tests the core substance of the law and traces it to one the two Lists. Hence, in a conflict, a Union law the substance of which was traceable to an entry in the State List would be struck down, and vice versa.

However, the doctrine permits incidental interferences that are not substantive. For example, as in a landmark 1946 case, a State law validly regulating moneylenders may incidentally deal with promissory notes, a Union field, since the interference is not substantive. Since surveillance is a police activity, and since “police” is a State subject, care must be taken by a Union surveillance law to remain on the pale of constitutionality by only incidentally affecting police procedure. Conversely, State surveillance laws were required to stay clear of the Union’s exclusive interception power until Bharat Shah’s case dissolved this distinction without answering the many questions it threw up.

Since the creation of the Republic, India’s federal scheme was premised on the notion that the Union and State Lists were exclusive of each other. Conceptually, the Union and the States could not have competing laws on the same subject. But Bharat Shah did just that; it located the interception power in both the Lists and did not enunciate a new doctrine to resolve their (inevitable) future conflict. This both disturbs Indian constitutional law and goes to the heart of surveillance and privacy law.

Three Principles of Interception

Apart from the important questions regarding legislative competence and constitutionality, the DOPT Bill proposed weak, ill-informed, and poorly drafted provisions to regulate surveillance and interceptions. It serves no purpose to further scrutinise the 2011 DOPT Bill. Instead, at this point, it may be constructive to set out the broad contours of a good interceptions regulation regime. Some clarity on the concepts: intercepting communications means capturing the content and metadata of oral and written communications, including letters, couriers, telephone calls, facsimiles, SMSs, internet telephony, wireless broadcasts, emails, and so on. It does not include activities such visual capturing of images, location tracking or physical surveillance; these are separate aspects of surveillance, of which interception of communications is a part.

Firstly, all interceptions of communications must be properly sanctioned. In India, under Rule 419A of the Indian Telegraph Rules, 1951, the Home Secretary – an unelected career bureaucrat, or a junior officer deputised by the Home Secretary – with even lesser accountability, authorises interceptions. In certain circumstances, even senior police officers can authorise interceptions. Copies of the interception orders are supposed to be sent to a Review Committee, consisting of three more unelected bureaucrats, for bi-monthly review. No public information exists, despite exhaustive searching, regarding the authorisers and numbers of interception orders and the appropriateness of the interceptions.

The Indian system derives from outdated United Kingdom law that also enables executive authorities to order interceptions. But, the UK has constantly revisited and revised its interception regime; its present avatar is governed by the Regulation of Investigatory Powers Act, 2000 ("RIPA") which creates a significant oversight mechanism headed by an independent commissioner, who monitors interceptions and whose reports are tabled in Parliament, and quasi-judicially scrutinised by a tribunal comprised of judges and senior independent lawyers, which hears public complaints, cancels interceptions, and awards monetary compensation. Put together, even though the current UK interceptions system is executively sanctioned, it is balanced by independent and transparent quasi-judicial authorities.

In the United States, all interceptions are judicially sanctioned because American constitutional philosophy – the separation of powers doctrine – requires state action to be checked and balanced. Hence, ordinary interceptions of criminals’ communications as also extraordinary interceptions of perceived national security threats are authorised only by judges, who are ex hypothesi independent, although, as the PRISM affairs teaches us, independence can be subverted. In comparison, India’s interception regime is incompatible with its democracy and must be overhauled to establish independent and transparent authorities to properly sanction interceptions.

Secondly, no interceptions should be sanctioned but upon ‘probable cause’. Simply described, probable cause is the standard that convinces a reasonable person of the existence of criminality necessary to warrant interception. Probable case is an American doctrine that flows from the US Constitution’s Fourth Amendment that protects the rights of people to be secure in places in which they have a reasonable expectation of privacy. There is no equivalent standard in UK law, except perhaps the common law test of reasonability that attaches to all government action that abridges individual freedoms. If a coherent ‘reasonable suspicion’ test could be coalesced from the common law, I think it would fall short of the strictness that the probable cause doctrine imposes on the executive. Therefore, the probable cause requirement is stronger than ordinary constraint of reasonability but weaker than the standard of reasonable doubt beyond which courts may convict. In this spectrum of acceptable standards, India’s current law in section 5(2) of the Indian Telegraph Act, 1885 is the weakest for it permits interceptions merely “on the occurrence of any public emergency or in the interest of public safety”, which determination is left to the “satisfaction” of a bureaucrat. And, under Rule 419A(2) of the Telegraph Rules, the only imposition on the bureaucrat when exercising this satisfaction is that the order “contain reasons” for the interception.

Thirdly, all interceptions should be warranted. This point refers not to the necessity or otherwise of the interception, but to the framework within which it should be conducted. Warrants should clearly specify the name and clear identity of the person whose communications are sought to be intercepted. The target person’s identity should be linked to the specific means of communication upon which the suspected criminal conversations take place. Therefore, if the warrant lists one person’s name but another person’s telephone number – which, because of the general ineptness of many police forces, is not uncommon – the warrant should be rejected and the interception cancelled. And, by extension, the specific telephone number, or email account, should be specified. A warrant against a person called Rahul Kumar, for instance, cannot be executed against all Rahul Kumars in the vicinity, nor also against all the telephones that the one specific Rahul Kumar uses, but only against the one specific telephone number that is used by the one specific Rahul Kumar. Warrants should also specify the duration of the interception, the officer responsible for its conduct and thereby liable for its abuse, and other safeguards. Some of these concerns were addressed in 2007 when the Telegraph Rules were amended, but not all.

A law that fails to substantially meet the standards of these principles is liable, perhaps in the not too distant future, to be read down or struck down by India’s higher judiciary. But, besides the threat of judicial review, a democratic polity must protect the freedoms and diversity of its citizens by holding itself to the highest standards of the rule of law, where the law is just.

For more details visit https://cis-india.org/internet-governance/blog/the-hoot-may-20-2014-bhairav-acharya-legislating-for-privacy

National Elections 2014: How Technology Powered Campaigns

praskrishna — 2014-05-20T07:03:51Z

HasGeek and the Centre for Internet and Society (CIS) welcome you to a presentation on how technology powered politicial campaigns in the recently concluded 2014 national elections. Developers, advocacy organizations and the general public are invited to participate. The event will be held at CIS on May 23, 2014, 6.00 p.m. to 8.30 p.m.

During the 2014 Indian general elections, technology was widely used for candidate and party campaigns. The purpose of these technology-driven campaigns was to help voters make more informed decisions before casting their votes. Voter responses to these campaigns continuously helped individual candidates and political parties (via their technology teams and consultants) to rework messaging till the very end.

HasGeek and CIS are organizing three presentations followed by an interactive Q&A session to understand how technology spurred campaigns during the 2014 elections, and how voters will have to get smarter just as parties are becoming smart in reaching out to them.

Sessions

Campaigning in the pre-Internet and Internet Era (Talk)

Vijay Grover, founder of Bangalore Media Foundation and television journalist since 17 years, will compare the past and present to explain how internet technologies have changed campaigning stratgies. Grover will argue that voters need to get smart in sifting information and making choices as more and more parties use social media and information technologies in reaching out to them.

Technology-driven campaigns (Talk)

Viral Shah, part of Nandan Nilekani's campaign management team, will talk about how India is placed in the global scene with respect to technology-driven political campaigns. Viral will also discuss how to design a campaign with technology and how technology was used to power Nilekani's campaign.

Tools used for powering campaigns and attracting volunteers (Talk)

BG Mahesh, founder and managing director at Oneindia.in, will talk about the tools used during Narendra Modi's campaign. Apart from informing voters about the candidate, volunteers were also enlisted through the drives. BG Mahesh will throw light on how technology made this possible.

Schedule

Time	Sessions
18.00 18.15	Introductions: HasGeek, CIS, The Fifth Elephant
18.15 18.45	Vijay Grover: Campaigning in the pre-Internet and Internet Era
18.45 19.15	Viral Shah: Technology-driven campaigning
19.15 19.45	B.G.Mahesh: Tools used for powering campaigns and attracting volunteers
19.45 20.15	Q & A Session
20.15 20.30	Snacks

For more details visit https://cis-india.org/events/national-elections-2014-how-technology-powered-campaigns

Net Neutrality, Free Speech and the Indian Constitution – III: Conceptions of Free Speech and Democracy

gautam — 2014-05-27T10:21:24Z

In this 3 part series, Gautam Bhatia explores the concept of net neutrality in the context of Indian law and the Indian Constitution.

In the modern State, effective exercise of free speech rights is increasingly dependent upon an infrastructure that includes newspapers, television and the internet. Access to a significant part of this infrastructure is determined by money. Consequently, if what we value about free speech is the ability to communicate one’s message to a non-trivial audience, financial resources influence both who can speak and, consequently, what is spoken. The nature of the public discourse – what information and what ideas circulate in the public sphere – is contingent upon a distribution of resources that is arguably unjust and certainly unequal.

There are two opposing theories about how we should understand the right to free speech in this context. Call the first one of these the libertarian conception of free speech. The libertarian conception takes as given the existing distribution of income and resources, and consequently, the unequal speaking power that that engenders. It prohibits any intervention designed to remedy the situation. The most famous summary of this vision was provided by the American Supreme Court, when it first struck down campaign finance regulations, in Buckley v. Valeo: “the concept that government may restrict the speech of some [in] order to enhance the relative voice of others is wholly foreign to the First Amendment.” This theory is part of the broader libertarian worldview, which would restrict government’s role in a polity to enforcing property and criminal law, and views any government-imposed restriction on what people can do within the existing structure of these laws as presumptively wrong.

We can tentatively label the second theory as the social-democratic theory of free speech. This theory focuses not so much on the individual speaker’s right not to be restricted in using their resources to speak as much as they want, but upon the collective interest in maintaining a public discourse that is open, inclusive and home to a multiplicity of diverse and antagonistic ideas and viewpoints. Often, in order to achieve this goal, governments regulate access to the infrastructure of speech so as to ensure that participation is not entirely skewed by inequality in resources. When this is done, it is often justified in the name of democracy: a functioning democracy, it is argued, requires a thriving public sphere that is not closed off to some or most persons.

Surprisingly, one of the most powerful judicial statements for this vision also comes from the United States. In Red Lion v. FCC, while upholding the “fairness doctrine”, which required broadcasting stations to cover “both sides” of a political issue, and provide a right of reply in case of personal attacks, the Supreme Court noted:

“[Free speech requires] preserv[ing] an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee… it is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.”

What of India? In the early days of the Supreme Court, it adopted something akin to the libertarian theory of free speech. In Sakal Papers v. Union of India, for example, it struck down certain newspaper regulations that the government was defending on grounds of opening up the market and allowing smaller players to compete, holding that Article 19(1)(a) – in language similar to what Buckley v. Valeo would hold, more than fifteen years later – did not permit the government to infringe the free speech rights of some in order to allow others to speak. The Court continued with this approach in its next major newspaper regulation case, Bennett Coleman v. Union of India, but this time, it had to contend with a strong dissent from Justice Mathew. After noting that “it is no use having a right to express your idea, unless you have got a medium for expressing it”, Justice Mathew went on to hold:

“What is, therefore, required is an interpretation of Article 19(1)(a) which focuses on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A Constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion… Any scheme of distribution of newsprint which would make the freedom of speech a reality by making it possible the dissemination of ideas as news with as many different facets and colours as possible would not violate the fundamental right of the freedom of speech of the petitioners. In other words, a scheme for distribution of a commodity like newsprint which will subserve the purpose of free flow of ideas to the market from as many different sources as possible would be a step to advance and enrich that freedom. If the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involves a regulation of the press which would amount to an abridgment of the freedom of speech.”

In Justice Mathew’s view, therefore, freedom of speech is not only the speaker’s right (the libertarian view), but a complex balancing act between the listeners’ right to be exposed to a wide range of material, as well as the collective, societal right to have an open and inclusive public discourse, which can only be achieved by preventing the monopolization of the instruments, infrastructure and access-points of speech.

Over the years, the Court has moved away from the majority opinions in Sakal Papers and Bennett Coleman, and steadily come around to Justice Mathew’s view. This is particularly evident from two cases in the 1990s: in Union of India v. The Motion Picture Association, the Court upheld various provisions of the Cinematograph Act that imposed certain forms of compelled speech on moviemakers while exhibiting their movies, on the ground that “to earmark a small portion of time of this entertainment medium for the purpose of showing scientific, educational or documentary films, or for showing news films has to be looked at in this context of promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues. Clearly, the impugned provisions are designed to further free speech and expression and not to curtail it.”

LIC v. Manubhai D. Shah is even more on point. In that case, the Court upheld a right of reply in an in-house magazine, “because fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions and unreasonable because there was no logic or proper justification for refusing publication… the respondent’s fundamental right of speech and expression clearly entitled him to insist that his views on the subject should reach those who read the magazine so that they have a complete picture before them and not a one sided or distorted one…” This goes even further than Justice Mathew’s dissent in Bennett Coleman, and the opinion of the Court in Motion Picture Association, in holding that not merely is it permitted to structure the public sphere in an equal and inclusive manner, but that it is a requirement of Article 19(1)(a).

We can now bring the threads of the separate arguments in the three posts together. In the first post, we found that public law and constitutional obligations can be imposed upon private parties when they discharge public functions. In the second post, it was argued that the internet has replaced the park, the street and the public square as the quintessential forum for the circulation of speech. ISPs, in their role as gatekeepers, now play the role that government once did in controlling and keeping open these avenues of expression. Consequently, they can be subjected to public law free speech obligations. And lastly, we discussed how the constitutional conception of free speech in India, that the Court has gradually evolved over many years, is a social-democratic one, that requires the keeping open of a free and inclusive public sphere. And if there is one thing that fast-lanes over the internet threaten, it is certainly a free and inclusive (digital) public sphere. A combination of these arguments provides us with an arguable case for imposing obligations of net neutrality upon ISPs, even in the absence of a statutory or regulatory obligations, grounded within the constitutional guarantee of the freedom of speech and expression.

For the previous post, please see: http://cis-india.org/internet-governance/blog/-neutrality-free-speech-and-the-indian-constitution-part-2.

_____________________________________________________________________________________________________

Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and presently an LLM student at the Yale Law School. He blogs about the Indian Constitution at http://indconlawphil.wordpress.com. Here at CIS, he will be blogging on issues of online freedom of speech and expression.

For more details visit https://cis-india.org/internet-governance/blog/net-neutrality-free-speech-and-the-indian-constitution-2013-iii-conceptions-of-free-speech-and-democracy

The Future of Cyber Governance

praskrishna — 2014-05-27T10:05:43Z

Hague Institute for Global Justice in association with the Observer Research Foundation, Ministry of Foreign Affairs of Netherlands, and the Netherlands Institute for International Relations - Clingendael organized a conference on the Future of Cyber Governance at the Hague from May 13 to 15, 2014. Sunil Abraham was a speaker at this event.

Global Governance Reform Initiative

The Global Governance Reform Initiative (GGRI) seeks to overcome the challenges of global governance in three important domains – cyberspace, oceans and migration – by improving the efficiency, effectiveness and legitimacy of collective actions undertaken by relevant stakeholders.

The current focus of the GGRI is the governance of cyberspace. How cyberspace is governed has significant implications for a range of critical issues, from national security to the protection of individuals’ rights and freedoms. Yet, the governance of cyberspace is highly contested. Tensions exist between those who favour private sector-led, decentralized forms of governance, and those who favour state-led, centralized forms of governance. There is, therefore, a pressing need for practicable policies which can help balance competing demands effectively.

The conference is a platform for 17 outstanding academics and professionals representing a range of countries and sectors to present papers addressing key issues related to the governance of cyberspace. The authors were selected through a competitive application process which sought to balance the candidates’ professional and geographic backgrounds in a manner that would maximize the quality and policy-relevance of the research.

During the conference, the participants will present their papers to a select group of seasoned experts on cyber governance. These experts will provide the participants with constructive feedback on their research findings and policy recommendations. The aim of the conference is to allow the participants to engage in a rigorous analysis of the selected governance challenges in order to craft practicable policy recommendations aimed at improving the governance of cyberspace. The authors of the best papers will be invited to present their work at the 2014 India Conference on Cyber Security and Cyber Governance, organized by the Observer Research Foundation, New Delhi.
The Hague Institute undertakes this project in collaboration with the Netherlands Ministry of Foreign Affairs, the Observer Research Foundation (New Delhi), and the Netherlands Institute of International Relations – Clingendael.

See the full details of the programme here.

Video

For more details visit https://cis-india.org/news/future-of-cyber-governance

Does Size Matter? A Tale of Performing Welfare, Producing Bodies and Faking Identity

praskrishna — 2014-06-04T09:45:49Z

Malavika Jayaram gave a talk.

This was published by the website of Berkman Center for Internet and Society

Big Data doesn’t get much bigger than India’s identity project. The world’s largest biometric database - currently consisting of almost 600 million enrolled - seduces with promises of inclusion, legitimacy and visibility. By locating this techno-utopian vision within the larger surveillance state that a unique identifier facilitates, Malavika will describe the ‘welfare industrial complex’ that imagines the poor as the next emerging market. She will highlight the risks of the body as password, of implementing e-governance in a legal vacuum, and of digitization reinforcing existing inequalities. The export of technologies of control - once they have been tested on a massive population that has little agency and limited ability to withhold consent - transforms this project from a site of local activism to one with global repercussions. By offering a perspective that is somewhat different from the traditional western focus of privacy, she hopes to generate a more inclusive discourse about what it means to be autonomous and empowered in the face of paternalistic development projects. She will highlight, in particular, the varied ways in which the project is already being subverted and re-purposed, in ways that are humorous and poignant.

About Malavika

Malavika is a Fellow at the Berkman Center for Internet and Society at Harvard University, focusing on privacy, identity and free expression. She is also a Fellow at the Centre for Internet and Society, Bangalore, and the author of the India chapter for the Data Protection & Privacy volume in the Getting the Deal Done series. Malavika is one of 10 Indian lawyers in The International Who's Who of Internet e-Commerce & Data Protection Lawyers directory. In August 2013, she was voted one of India’s leading lawyers - one of only 8 women to be featured in the “40 under 45” survey conducted by Law Business Research, London. In a different life, she spent 8 years in London, practicing law with global firm Allen & Overy in the Communications, Media & Technology group, and as VP and Technology Counsel at Citigroup. She is working on a PhD about the development of a privacy jurisprudence and discourse in India, viewed partly through the lens of the Indian biometric ID project.

Podcast

Watch the podcast at this link.

For more details visit https://cis-india.org/news/harvard-university-may-13-2014-does-size-matter

European Court of Justice rules Internet Search Engine Operator responsible for Processing Personal Data Published by Third Parties

jyoti — 2014-05-14T14:18:46Z

The Court of Justice of the European Union has ruled that an "an internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties.” The decision adds to the conundrum of maintaining a balance between freedom of expression, protecting personal data and intermediary liability.

The ruling is expected to have considerable impact on reputation and privacy related takedown requests as under the decision, data subjects may approach the operator directly seeking removal of links to web pages containing personal data. Currently, users prove whether data needs to be kept online—the new rules reverse the burden of proof, placing an obligation on companies, rather than users for content regulation.

A win for privacy?

The ECJ ruling addresses Mario Costeja González complaint filed in 2010, against Google Spain and Google Inc., requesting that personal data relating to him appearing in search results be protected and that data which was no longer relevant be removed. Referring to the Directive 95/46/EC of the European Parliament, the court said, that Google and other search engine operators should be considered 'controllers' of personal data. Following the decision, Google will be required to consider takedown requests of personal data, regardless of the fact that processing of such data is carried out without distinction in respect of information other than the personal data.

The decision—which cannot be appealed—raises important of questions of how this ruling will be applied in practice and its impact on the information available online in countries outside the European Union. The decree forces search engine operators such as Google, Yahoo and Microsoft's Bing to make judgement calls on the fairness of the information published through their services that reach over 500 million people across the twenty eight nation bloc of EU.

ECJ rules that search engines 'as a general rule,' should place the right to privacy above the right to information by the public. Under the verdict, links to irrelevant and out of date data need to be erased upon request, placing search engines in the role of controllers of information—beyond the role of being an arbitrator that linked to data that already existed in the public domain. The verdict is directed at highlighting the power of search engines to retrieve controversial information while limiting their capacity to do so in the future.

The ruling calls for maintaining a balance in addressing the legitimate interest of internet users in accessing personal information and upholding the data subject’s fundamental rights, but does not directly address either issues. The court also recognised, that the data subject's rights override the interest of internet users, however, with exceptions pertaining to nature of information, its sensitivity for the data subject's private life and the role of the data subject in public life. Acknowledging that data belongs to the individual and is not the right of the company, European Commissioner Viviane Reding, hailed the verdict, "a clear victory for the protection of personal data of Europeans".

The Court stated that if data is deemed irrelevant at the time of the case, even if it has been lawfully processed initially, it must be removed and that the data subject has the right to approach the operator directly for the removal of such content. The liability issue is further complicated by the fact, that search engines such as Google do not publish the content rather they point to information that already exists in the public domain—raising questions of the degree of liability on account of third party content displayed on their services.

The ECJ ruling is based on the case originally filed against Google, Spain and it is important to note that, González argued that searching for his name linked to two pages originally published in 1998, on the website of the Spanish newspaper La Vanguardia. The Spanish Data Protection Agency did not require La Vanguardia to take down the pages, however, it did order Google to remove links to them. Google appealed this decision, following which the National High Court of Spain sought advice from the European court. The definition of Google as the controller of information, raises important questions related to the distinction between liability of publishers and the liability of processors of information such as search engines.

The 'right to be forgotten'

The decision also brings to the fore, the ongoing debate and fragmented opinions within the EU, on the right of the individual to be forgotten. The 'right to be forgotten' has evolved from the European Commission's wide-ranging plans of an overhaul of the commission's 1995 Data Protection Directive. The plans for the law included allowing people to request removal of personal data with an obligation of compliance for service providers, unless there were 'legitimate' reasons to do otherwise. Technology firms rallying around issues of freedom of expression and censorship, have expressed concerns about the reach of the bill. Privacy-rights activist and European officials have upheld the notion of the right to be forgotten, highlighting the right of the individual to protect their honour and reputation.

These issues have been controversial amidst EU member states with the UK's Ministry of Justice claiming the law 'raises unrealistic and unfair expectations' and has sought to opt-out of the privacy laws. The Advocate General of the European Court Niilo Jääskinen's opinion, that the individual's right to seek removal of content should not be upheld if the information was published legally, contradicts the verdict of the ECJ ruling. The European Court of Justice's move is surprising for many and as Richard Cumbley, information-management and data protection partner at the law firm Linklaters puts it, “Given that the E.U. has spent two years debating this right as part of the reform of E.U. privacy legislation, it is ironic that the E.C.J. has found it already exists in such a striking manner."

The economic implications of enforcing a liability regime where search engine operators censor legal content in their results aside, the decision might also have a chilling effect on freedom of expression and access to information. Google called the decision “a disappointing ruling for search engines and online publishers in general,” and that the company would take time to analyze the implications. While the implications of the decision are yet to be determined, it is important to bear in mind that while decisions like these are public, the refinements that Google and other search engines will have to make to its technology and the judgement calls on the fairness of the information available online are not public.

The ECJ press release is available here and the actual judgement is available here.

For more details visit https://cis-india.org/internet-governance/blog/ecj-rules-internet-search-engine-operator-responsible-for-processing-personal-data-published-by-third-parties

Net Freedom Campaign Loses its Way

sunil — 2014-05-27T11:07:04Z

A recent global meet was a victory for governments and the private sector over civil society interests.

The article was published in the Hindu Businessline on May 10, 2014.

One word to describe NetMundial: Disappointing! Why? Because despite the promise, human rights on the Internet are still insufficiently protected. Snowden’s revelations starting last June threw the global Internet governance processes into crisis.

Things came to a head in October, when Brazil’s President Dilma Rousseff, horrified to learn that she was under NSA surveillance for economic reasons, called for the organisation of a global conference called NetMundial to accelerate Internet governance reform.

The NetMundial was held in São Paulo on April 23-24 this year. The result was a statement described as “the non-binding outcome of a bottom-up, open, and participatory process involving … governments, private sector, civil society, technical community, and academia from around the world.” In other words — it is international soft law with no enforcement mechanisms.

The statement emerges from “broad consensus”, meaning governments such as India, Cuba and Russia and civil society representatives expressed deep dissatisfaction at the closing plenary. Unlike an international binding law, only time will tell whether each member of the different stakeholder groups will regulate itself.

Again, not easy, because the outcome document does not specifically prescribe what each stakeholder can or cannot do — it only says what internet governance (IG) should or should not be. And finally, there’s no global consensus yet on the scope of IG. The substantive consensus was disappointing in four important ways:

Mass surveillance : Civil society was hoping that the statement would make mass surveillance illegal. After all, global violation of the right to privacy by the US was the raison d'être of the conference.

Instead, the statement legitimised “mass surveillance, interception and collection” as long as it was done in compliance with international human rights law. This was clearly the most disastrous outcome.

Access to knowledge: The conference was not supposed to expand intellectual property rights (IPR) or enforcement of these rights. After all, a multilateral forum, WIPO, was meant to address these concerns. But in the days before the conference the rights-holders lobby went into overdrive and civil society was caught unprepared.

The end result — “freedom of information and access to information” or right to information in India was qualified “with rights of authors and creators”. The right to information laws across the world, including in India, contains almost a dozen exemptions, including IPR. The only thing to be grateful for is that this limitation did not find its way into the language for freedom of expression.

Intermediary liability: The language that limits liability for intermediaries basically provides for a private censorship regime without judicial oversight, and without explicit language protecting the rights to freedom of expression and privacy. Even though the private sector chants Hillary Clinton's Internet freedom mantra — they only care for their own bottomlines.

Net neutrality: Even though there was little global consensus, some optimistic sections of civil society were hoping that domestic best practice on network neutrality in Brazil’s Internet Bill of Right — also known as Marco Civil, that was signed into law during the inaugural ceremony of NetMundial — would make it to the statement. Unfortunately, this did not happen.

For almost a decade since the debate between the multi-stakeholder and multilateral model started, the multi-stakeholder model had produced absolutely nothing outside ICANN (Internet Corporation for Assigned Names and Numbers, a non-profit body), its technical fraternity and the standard-setting bodies.

The multi-stakeholder model is governance with the participation (and consent — depending on who you ask) of those stakeholders who are governed. In contrast, in the multilateral system, participation is limited to nation-states.

Civil society divisions

The inability of multi-stakeholderism to deliver also resulted in the fragmentation of global civil society regulars at Internet Governance Forums.

But in the run-up to NetMundial more divisions began to appear. If we ignore nuances — we could divide them into three groups. One, the ‘outsiders’ who are best exemplified by Jérémie Zimmermann of the La Quadrature du Net. Jérémie ran an online campaign, organised a protest during the conference and did everything he could to prevent NetMundial from being sanctified by civil society consensus.

Two, the ‘process geeks’ — for these individuals and organisations process was more important than principles. Most of them were as deeply invested in the multi-stakeholder model as ICANN and the US government and some who have been riding the ICANN gravy train for years.

Even worse, some were suspected of being astroturfers bootstrapped by the private sector and the technical community. None of them were willing to rock the boat. For the ‘process geeks’, seeing politicians and bureaucrats queue up like civil society to speak at the mike was the crowning achievement.

Three, the ‘principles geeks’ perhaps best exemplified by the Just Net Coalition who privileged principles over process. Divisions were also beginning to sharpen within the private sector. For example, Neville Roy Singham, CEO of Thoughtworks, agreed more with civil society than he did with other members of the private sector in his interventions.

In short, the ‘outsiders’ couldn't care less about the outcome and will do everything to discredit it, the ‘process geeks’ stood in ovation when the outcome document was read at the closing plenary and the ‘principles geeks’ returned devastated.

For the multi-stakeholder model to survive it must advance democratic values, not undermine them.

This will only happen if there is greater transparency and accountability. Individuals, organisations and consortia that participate in Internet governance processes need to disclose lists of donors including those that sponsor travel to these meetings.

For more details visit https://cis-india.org/internet-governance/blog/the-hindu-business-line-may-10-2014-sunil-abraham-net-freedom-campaign-loses-its-way

Civil Society Pushes for Privacy Panel

praskrishna — 2014-05-27T11:39:20Z

The article was published in the Times of India on May 6, 2014. Sunil Abraham is quoted.

Civil society organizations are pushing for a 'privacy commission' to provide protection to individuals from illegal breach of their privacy, with guidelines imposing penal sanction against the violators. This assumes significance

This assumes significance at a time when the Centre has decided to set up a judicial panel to probe the snoopgate scandal wherein the BJP government in Gujarat was allegedly involved in illegal surveillance of a woman architect and especially when the Right to Privacy Bill is pending in Parliament.

However, industry consortia, including CII and FICCI, prefer lesser regulation, though calling for a cautious approach.

Among civil society organizations pressing for a stringent privacy bill is the International Centre for Free and Open Source Software (ICFOSS), the only representative from Kerala to attend the NETmundial conference held recently in Brazil. The meet focused on privacy issues to ensure basic human rights, including freedom of expression.

NETmundial is the first step towards pushing for a privacy law against the snooping and spying on individuals by those in power, including agencies within and outside the country Privacy guidelines should be clear as to what data can be collected without infringing on the dignity of an individual as 'data' represents the duration of a call, while 'metadata' reveals the content of the caH," said ICFOSS director SatishBabu.

Bangalore-based Centre for Internet and Society (CIS), another NETmundial participant, also stands for a strong privacy law. "The two-day conference that concluded on April 24 was a baby step towards a privacy law with a road map for global internet governance. It is the first step towards a multi-stakeholder model offering an equal footing for all civil society organizations, academia, government, private sector and the UN fora," said CIS executive director Sunil Abraham

“We are pushing for a privacy law in the country aimed at national privacy regulation and constituting a privacy commission on the lines of the information commission," he added.

Click to read the full story

For more details visit https://cis-india.org/news/the-times-of-india-may-6-2014-laxmi-ajai-prasanna-civil-society-pushes-for-privacy-panel

Filtering content on the internet

chinmayi — 2014-05-06T09:33:08Z

The op-ed was published in the Hindu on May 2, 2014.

On May 5, the Supreme Court will hear Kamlesh Vaswani’s infamous anti-pornography petition again. The petition makes some rather outrageous claims. Watching pornography ‘puts the country’s security in danger’ and it is ‘worse than Hitler, worse than AIDS, cancer or any other epidemic,’ it says. This petition has been pending before the Court since February 2013, and seeks a new law that will ensure that pornography is exhaustively curbed.

Disintegrating into binaries

The petition assumes that pornography causes violence against women and children. The trouble with such a claim is that the debate disintegrates into binaries; the two positions being that pornography causes violence or that it does not. The fact remains that the causal link between violence against women and pornography is yet to be proven convincingly and remains the subject of much debate. Additionally, since the term pornography refers to a whole range of explicit content, including homosexual adult pornography, it cannot be argued that all pornography objectifies women or glamorises violent treatment of them.

Allowing even for the petitioner’s legitimate concern about violence against women, it is interesting to note that of all the remedies available, he seeks the one which is authoritarian but may not have any impact at all. Mr. Vaswani could have, instead, encouraged the state to do more toward its international obligations under the Convention on the Elimination of Discrimination against Women (CEDAW). CEDAW’s General Recommendation No. 19 is about violence against women and recommends steps to be taken to reduce violence against women. These include encouraging research on the extent, causes and effects of violence, and adopting preventive measures, such as public information and education programmes, to change attitudes concerning the roles and status of men and women.

Child pornography

Although different countries disagree about the necessity of banning adult pornography, there is general international consensus about the need to remove child pornography from the Internet. Children may be harmed in the making of pornography, and would at the very minimum have their privacy violated to an unacceptable degree. Being minors, they are not in a position to consent to the act. Each act of circulation and viewing adds to the harmful nature of child pornography. Therefore, an argument can certainly be made for the comprehensive removal of this kind of content.

Indian policy makers have been alive to this issue. The Information Technology Act (IT Act) contains a separate provision for material depicting children explicitly or obscenely, stating that those who circulate such content will be penalised. The IT Act also criminalises watching child pornography (whereas watching regular pornography is not a crime in India).

Intermediaries are obligated to take down child pornography once they have been made aware that they are hosting it. Organisations or individuals can proactively identify and report child pornography online. Other countries have tried, with reasonable success, systems using hotlines, verification of reports and co-operation of internet service providers to take down child pornography. However, these systems have also sometimes resulted in the removal of other legitimate content.

Filtering speech on the Internet

Child pornography can be blocked or removed using the IT Act, which permits the government to send lists of URLs of illegal content to internet service providers, requiring them to remove this content. Even private parties can send notices to online intermediaries informing them of illegal content and thereby making them legally accountable for such content if they do not remove it. However, none of this will be able to ensure the disappearance of child pornography from the Internet in India.

Technological solutions like filtering software that screens or blocks access to online content, whether at the state, service provider or user level, can at best make child pornography inaccessible to most people. People who are more skilled than amateurs will be able to circumvent technological barriers since these are barriers only until better technology enables circumvention.

Additionally, attempts at technological filtering usually even affect speech that is not targeted by the filtering mechanism. Therefore, any system for filtering or blocking content from the Internet needs to build in safeguards to ensure that processes designed to remove child pornography do not end up being used to remove political speech or speeches that are constitutionally protected.

In the Vaswani case, the government has correctly explained to the Supreme Court that any greater attempt to monitor pornography is not technologically feasible. It has pointed out that human monitoring of content will delay transmission of data substantially, will slow down the Internet, and will also be ineffective, since the illegal content can easily be moved to other servers in other countries.

Making intermediaries liable for the content they host will undo the safe harbour protection granted to them by the IT Act. Without it, intermediaries like Facebook will actually have to monitor all the content they host, and the resources required for such monitoring will reduce the content that makes its way online. This would seriously impact the extensiveness and diversity of content available on the Internet in India. Additionally, when demands are made for the removal of legitimate content, profit-making internet companies will be disinclined to risk litigation much in the same way as Penguin was reluctant to defend Wendy Doniger’s book.

If the Supreme Court makes the mistake of creating a positive obligation to monitor Internet content for intermediaries, it will effectively kill the Internet in India.

(Chinmayi Arun is research director, Centre for Communication Governance, National Law University, Delhi, and fellow, Centre for Internet and Society, Bangalore)

For more details visit https://cis-india.org/internet-governance/blog/filtering-content-on-the-internet

Networks: What You Don’t See is What You (for)Get

nishant — 2014-05-28T09:30:45Z

When I start thinking about DML (digital media and learning) and other such “networks” that I am plugged into, I often get a little confused about what to call them.

The blog entry was originally published in DML Central on April 17, 2014 and mirrored in Hybrid Publishing Lab on May 13, 2014.

Are we an ensemble of actors? A cluster of friends? A conference of scholars? A committee of decision makers? An array of perspectives? A group of associates? A play-list of voices? I do not pose these questions rhetorically, though I do enjoy rhetoric. I want to look at this inability to name collectives and the confusions and ambiguity it produces as central to our conversations around digital thinking. In particular, I want to look at the notion of the network. Because, I am sure, that if we were to go for the most neutralised digital term to characterise this collection that we all weave in and out of, it would have to be the network. We are a network.[1]

But, what does it mean to say that we are a network? The network is a very strange thing. Especially within the realms of the Internet, which, in itself, purports to be a giant network, the network is self-explanatory, self-referential and completely denuded of meaning. A network is benign, and like the digital, that foregrounds the network aesthetic, the network is inscrutable. You cannot really touch a network or name it. You cannot shape it or define it. You can produce momentary snapshots of it, but you can never contain it or limit it. The network cannot be held or materially felt.

And yet, the network touches us. We live within networked societies. We engage in networking – network as a verb. We are a network – network as a noun. We belong to networks – network as a collective. In all these poetic mechanisms of network, there is perhaps the core of what we want to talk about today – the tension between the local and the global and the way in which we will understand the Internet and then the frameworks of governance and policy that surround it.

Let me begin with a genuine question. What predates the network? Because the network is a very new word. The first etymological trace of the network is in 1887, where it was used as a verb, within broadcast and communications models, to talk about an outreach. As in ‘to cover with a network.’ The idea of a network as a noun is older where in the 1550s, the idea of ‘net-like arrangements of threads, wires, etc.’ was first identified as a network. In the second half of the industrial 19th Century, the term network was used for understanding an extended, complex, interlocking system. The idea of network as a set of connected people emerged in the latter half of the 20thCentury. I am pointing at these references to remind us that the ubiquitous presence of the network, as a practice, as a collective, and as a metaphor that seeks to explain the rest of the world around us, is a relatively new phenomenon. And we need to be aware of the fact, that the network, especially as it is understood in computing and digital technologies, is a particular model through which objects, individuals and the transactions between them are imagined.

For anybody who looks at the network itself – especially the digital network that we have accepted as the basis on which everything from social relationships on Facebook to global financial arcs are defined – we know that the network is in a state of crisis.

Networks of crises: The Bangalore North East Exodus

Let me illustrate the multiple ways in which the relationship between networks and crisis has been imagined through a particular story. In August 2012, I woke up one morning to realise that I was living in a city of crisis. Bangalore, which is one of my homes, where the largest preoccupations to date have been about bad roads, stray dogs, and occasionally, the lack of a nightlife, was suddenly a space that people wanted to flee and occupy simultaneously.

Through the technology mediated gossip mill that produced rumours faster than the speed of a digital click, imagination of terror, danger, and material harm found currency. The city suddenly witnessed thousands of people running away from it, heading back to their imagined homelands. It was called the North East exodus, where, following an ethnic-religious clash between two traditionally hostile communities in Assam, there were rumours that the large North East Indian community in Bangalore was going to be attacked by certain Muslim factions at the end of Ramadan.
The media spectacle of the exodus around questions of religion, ethnicity, regionalism and belonging only emphasised the fact that there is a new way of connectedness that we live in – the network society that no longer can be controlled, contained or corrected by official authorities and their voices. Despite a barrage of messages from law enforcement and security authorities, on email, on large screens on the roads, and on our cell phones, there was a growing anxiety and a spiralling information explosion that was producing an imaginary situation of precariousness and bodily harm. For me, this event, was one of the first signalling how to imagine the network society in a crisis, especially when it came to Bangalore, which is supposed to represent the Silicon dreams of an India that is shining brightly. While there is much to be unpacked about the political motivations and the ecologies of fear that our migrant lives in global cities are enshrined in, I want to specifically focus on what the emergence of this network society means.

There is an imagination, especially in cities like Bangalore, of digital technologies as necessarily plugging in larger networks of global information consumption. The idea that technology plugs us into the transnational circuits is so huge that it only tunes us toward an idea of connectedness that is always outward looking, expanding the scope of nation, community and body.

However, the ways in which information was circulating during this phenomenon reminds us that digital networks are also embedded in local practices of living and survival. Most of the time, these networks are so natural and such an integral part of our crucial mechanics of urban life that they appear as habits, without any presence or visibility. In times of crises – perceived or otherwise – these networks make themselves visible, to show that they are also inward looking. But in this production of hyper-visible spectacles, the network works incessantly to make itself invisible.

Which is why, in the case of the North East exodus, the steps leading to the resolution of the crisis, constructed and fuelled by networks is interesting. As government and civil society efforts to control the rumours and panic reached an all-time high and people continued to flee the city, the government eventually went in to regulate the technology itself. There were expert panel discussions about whether the digital technologies are to be blamed for this rumour mill. There was a ban on mass-messaging and there was a cap on the number of messages which could be sent on a day by each mobile phone subscriber. The Information and Broadcast Ministry along with the Information Technologies cell, started monitoring and punishing people for false and inflammatory information.

Network as Crisis: The unexpected visibility of a network

What, then, was the nature of the crisis in this situation? It is a question worth exploring. We would imagine that this crisis was a crisis about the nationwide building of mega-cities filled with immigrant bodies that are not allowed their differences because they all have to be cosmopolitan and mobile bodies. The crisis could have been read as one of neo-liberal flatness in imagining the nation and its fragments, that hides the inherent and historical sites of conflict under the seductive rhetoric of economic development. And yet, when we look at the operationalization of the resolutions, it looked as if the crisis was the appearance and the visibility of the hitherto hidden local networks of information and communication.

In her analysis of networks, Brown University’s Wendy Chun posits that this is why networks are an opaque metaphor. If the function of metaphor is to explain, through familiarity, objects which are new to us, the network as an explanatory paradigm presents a new conundrum. While the network presumes and exteriority that it seeks to present, while the network allows for a subjective interiority of the actor and its decisions, while the network grants visibility and form to the everyday logic of organisation, what the network actually seeks to explain is itself. Or, in less evocative terms, the network is not only the framework through which we analyse, but it is also the object of analyses. Once the network has been deployed as a paradigm through which to understand a crisis, once the network has made itself visible, all our efforts are driven at explaining and strengthening, and almost like digital mothers, comfort the network back into its peaceful existence as infrastructure. We develop better tools to regulate the network. We define new parameters to mine the data more effectively. We develop policies to govern and govern through the network with greater transparency and ease.

Thus, in the case of the North East exodus, instead of addressing the larger issues of conservative parochialism, an increasing backlash by right-wing governments and a growing hostility that emerges from these cities that nobody possesses and nobody belongs to, the efforts were directed at blaming technology as the site where the problem is located and the network as the object that needs to be controlled. What emerged was a series of corrective mechanisms and a set of redundant regulations that controlled the number of text messages that people were able to send per day or policing the Internet for spreading rumours. The entire focus was on information management, as if the reason for the mass exodus of people from the NE Indian states and the sense of fragility that the city had been immersed in, was all due to the pervasive and ubiquitous information gadgets and their ability to proliferate in p2p (peer-to-peer) environments outside of the government’s control. This lack of exteriority to the network is something that very few critical voices have pointed out.

Duncan Watts, the father of network computing, working through the logic of nodes, traffic and edges, has suggested there is a great problem in the ways in which we understand the process of network making. I am paraphrasing his complex mathematical text that explains the production of physical networks – what he calls the small worlds – and pointing out his strong critique about how the social scientists engage with networks. In the social sciences’ imagination of networks, there is a messy exteriority – fuzzy, complex and often not reducible to patterns or basic principles. The network is a distilling of the messy exteriority, a representation of the complex interplay between different objects and actors, and a visual mapping of things as they are. Which is to say, we imagine there is a material reality and the network is a tool by which this reality, or at least parts of this reality, are mapped and represented to us in patterns which can help us understand the true nature of this reality.

Drawing from practices of network modelling and building, Watts proved, that we have the equation wrong. The network is not a representation of reality but the ontology of reality. The network is not about trying to make sense of an exteriority. Instead, the network is an abstract and ideological map that constructs the reality in a particular way. In other words, the network precedes the real, and because of its ability to produce objective, empiricist and reductive principles (constantly filtering out that which is not important to the logic or the logistics of the network design), it then gives us a reality that is produced through the network principles. To make it clear, the network representation is not the derivative of the real but the blue-print of the real. And the real as we access it, through these networked tools, is not the raw and messy real but one that is constructed and shaped by the network in those ways. The network, then, needs to be understood, examined and critiqued, not as something that represents the natural, but something that shapes our understanding of the natural itself.

In the case of the Bangalore North East Exodus, the network and its visibility created a problem for us – and the problem was, that the network, which is supposed to be infrastructure, and hence, by nature invisible, had suddenly become visible. We needed to make sure that it was shamed, blamed, named and tamed so that we can go back to our everyday practices of regulation, governance and policy.

The Intersectional Network

What I want to emphasise, then, is that this binary of local versus the global, or local working in tandem with global, or the quaintly hybridised glocal are not very generative in thinking of policy and politics around the Internet. What we need is to recognise what gets hidden in this debate. What becomes visible when it is not supposed to? What remains invisible beyond all our efforts? And how do we develop a framework that actually moves beyond these binary modes of thinking, where the resolution is either to collapse them or to pretend that they do not exist in the first place? Working with frameworks like the network makes us aware of the ways in which these ideas of the global and the local are constructed and continue to remain the focus of our conversations, making invisible the real questions at hand.

Hence, we need to think of networks, not as spaces of intersection, but in need of intersections. The networks, because of their predatory, expanding nature, and the constant interaction with the edges, often appear as dynamic and inclusive. We need to now think of the networks as in need of intersections – or of intersectional networks. Developing intersections, of temporality, of geography and of contexts are great. But, we need to move one step beyond – and look at the couplings of aspiration, inspiration, autonomy, control, desire, belonging and precariousness that often mark the new digital subjects. And our policies, politics and regulations will have to be tailored to not only stop the person abandoning her life and running to a place of safety, not only stop the rumours within the Information and communication networks, not only create stop-gap measures of curbing the flows of gossip, but to actually account for the human conditions of life and living.

[1]. This post has grown from conversations across three different locations. The first draft of this talk was presented at the Habits of Living Conference, organised by the Centre for Internet & Society and Brown University, in Bangalore. A version of this talk found great inputs from the University of California Humanities Research Institute in Irvine, where I found great ways of sharpening the focus. The responses at the Milton Wolf Seminar at the America Austria Foundation, Austria, to this story, helped in making it more concrete to the challenges that the “network” throws to our digital modes of thinking. I am very glad to be able to put the talk into writing this time, and look forward to more responses.

For more details visit https://cis-india.org/internet-governance/blog/dml-central-april-17-2014-nishant-shah-networks-what-you-dont-see-is-what-you-for-get

April 2014 Bulletin

praskrishna — 2014-07-04T03:38:00Z

The newsletter for the month of April can be accessed below:

We at the Centre for Internet & Society (CIS) welcome you to the fourth issue of the newsletter (April) for the year 2014. Archives of our newsletters can be accessed at: http://cis-india.org/about/newsletters

Highlights

We have published a compilation of the various central government schemes in a blog post as part of our National Resource Kit project.

The 27^th session of the WIPO Standing Committee on Copyright and Related Rights (WIPO-SCCR) was held in Geneva from April 28 to May 2, 2014. Nehaa Chaudhari participated in the event. CIS made its statements on Technological Measures of Protection on Limitations and Exceptions for Libraries and Archives, Orphan Works, Retracted and Withdrawn Works, and Works out of Commerce on Limitations and Exceptions for Libraries and Archives, and on the WIPO Proposed Treaty for the Protection of Broadcasting Organizations.
CIS signed a memorandum of understanding (MoU) with Mysore University for converting to Unicode and re-releasing their encyclopaedia under Creative Commons License. Dr. U.B. Pavanaja on behalf of the CIS-A2K team signed the MoU.
A two-day global stakeholder meeting on future of internet governance (NETmundial) was organized by the Brazilian Internet Steering Committee in partnership with /1Net at Sao Paulo in Brazil on April 23 and 24, 2014. Achal Prabhala participated in the event. As part of its research to enable productive discussions of the critical internet governance issues at the meeting and elsewhere CIS published a total of 16 blog entries.
We conducted an empirical study of five separate and diverse banks (State Bank of India, Central Bank of India, ICICI Bank, IndusInd Bank, and Standard Chartered Bank) to gain a practical perspective on the existing banking practices and policies in India, and published a Banking Policy Guide.
As part of the Making Change project Denisse Albornoz interviewed Tuhin Paul, an artist and storyteller behind Menstrupedia, an India-based social venture creating comics to shatter the myths and misunderstandings surrounding menstruation around the world. Denisse provides an analysis of ‘menstrual activism’ — a movement that despite its trajectory in feminism remains unnoticed in most accounts of traditional and digital activism.
Six research studies were commissioned by HEIRA-CSCS (over November 2013-March 2014) as part of the collaborative exercise with CIS to map the Digital Humanities within a broad rubric of exploring changes at the intersection of youth, technology and higher education in India. P.P.Sneha in her blog post presents a broad overview of some of the key learnings from these projects.

Jobs
CIS is seeking applications for the post of Programme Officer (Access to Knowledge). There are two vacancies for this post one in Delhi and one in Bangalore. To apply, please send your resume to Sunil Abraham (sunil@cis-india.org), Nirmita Narasimhan (nirmita@cis-india.org) and Pranesh Prakash (pranesh@cis-india.org) with three writing samples of which at least one demonstrates your analytic skills, and one that shows your ability to simplify complex policy issues.

Accessibility and Inclusion

Under a grant from the Hans Foundation we are doing two projects. The first project is on creating a national resource kit of state-wise laws, policies and programmes on issues relating to persons with disabilities in India. We compiled the first draft of the kit (29 states and 6 union territories). The chapters along with the quarterly reports can be accessed on the project page. The second project is on developing text-to-speech software for 15 Indian languages. The progress made so far in the project can be accessed here.

NVDA

Monthly Update

NVDA e-Speak Text-to-Speech Project Update (by Suman Dogra, April 28, 2014).

National Resource Kit

Blog Entry

Central Government Schemes (by Anandhi Viswanathan and CLPR, April 27, 2014).

Other

Blog Entry

Polling Pains (by Amba Salelkar, April 30, 2014).

Media Coverage

Are Elections Fair to People With Special Needs? (by Papiya Bhattacharya, New Indian Express, April 8, 2014).
Enabling Elections (Vijay Karnataka, April 9, 2014). This was published in Kannada.

Access to Knowledge

As part of the Access to Knowledge programme we are doing two projects. The first one (Pervasive Technologies) under a grant from the International Development Research Centre (IDRC) is for research on the complex interplay between pervasive technologies and intellectual property to support intellectual property norms that encourage the proliferation and development of such technologies as a social good. The second one (Wikipedia) under a grant from the Wikimedia Foundation is for the growth of Indic language communities and projects by designing community collaborations and partnerships that recruit and cultivate new editors and explore innovative approaches to building projects.

WIPO SCCR

Participation in Events

Standing Committee on Copyright and Related Rights: Twenty-Seventh Session (organized by WIPO, Geneva, April 28 – May 2, 2014). Nehaa Chaudhari participated in the event. France, Greece, India and the European Union signed the Marrakesh Treaty. CIS delivered statements on Technological Measures of Protection on Limitations and Exceptions for Libraries and Archives, Orphan Works, Retracted and Withdrawn Works, and Works out of Commerce on Limitations and Exceptions for Libraries and Archives, and on the WIPO Proposed Treaty for the Protection of Broadcasting Organizations. Transcripts of the discussions can be accessed here.

Blog Entries

Report on CDIP-12 (by Puneeth Nagraj, April 22, 2014).
Signing and Ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled (by Nehaa Chaudhari, April 25, 2014).
Report on the WIPO Director General’s Meeting with NGO’s (by Puneeth Nagraj, April 30, 2014).

Media Coverage

Is the WIPO Treaty for Broadcasters Moving Forward at SCCR 27? (by Manon Ress, Knowledge Ecology International, April 29, 2014).
At WIPO, Authors, Civil Society Watchful of Rights for Broadcasters (by Catherine Saez, IP Watch, May 1, 2014).

Other

Event Organized

NASA International Space Apps Challenge 2014 (CIS, Bangalore, April 12 – 13, 2014).

Blog Entries

Online Survey for Indian Mobile App Developer Startups & Enterprises (by Samantha Cassar, April 9, 2014).
App Developers Series: Services, Products, Dichotomy & IP – Part I (by Samantha Cassar, April 10, 2014).
Report on CDIP-12 (by Puneeth Nagraj, April 22, 2014).
Report on the 31st Session of the Standing Committee on Trademarks (by Puneeth Nagraj, April 29, 2014).

Wikipedia

The following has been done under grant from the Wikimedia Foundation:

Announcement

CIS Signs MoU with Mysore University (by Dr. U.B.Pavanaja, April 16, 2014): for converting to Unicode and re-releasing their encyclopaedia under Creative Commons License. Dr. U.B. Pavanaja on behalf of the CIS-A2K team signed the MoU. The signing event took place earlier on February 22, 2014.

Articles

Vachana Sanchaya: Bringing Access to 11th century Kannada Literature (by Subhashish Panigrahi, April 3, 2014)
୭୯ ବର୍ଷରେ ସ୍ୱତନ୍ତ୍ର ଓଡ଼ିଶା: ଶାସ୍ତ୍ରୀୟ ଓଡ଼ିଆ ଓ କମ୍ପ୍ୟୁଟରରେ ଏହାର ବ୍ୟବ‌ହାର (by Subhashish Panigrahi, Amalekha, April 4, 2014).
ଓଡ଼ିଅା ଭାଷାର ବିକାଶ ଓ କମ୍ପ୍ୟୁଟର (by Subhashish Panigrahi, The Kadambini, April 8, 2014).
Report from India: Relicensing books under CC (by Subhashish Panigrahi, Creative Commons Blog, April 19, 2014).
14 Odia books re-released under Creative Commons license (by Subhashish Panigrahi, DNA, April 26, 2014). The article was edited by Rohini Lakshane.

Events Organized

Tulu Wikipedia Workshop (organized by CIS-A2K, Balmatta Computer Centre, Mangalore, April 5, 2014). Dr. U.B.Pavanaja conducted the workshop.
Konkani Wikipedia Workshop (co-organized by All India Konkani Writers Organization and CIS-A2K, Kalaangann Shaktinagar, April 6, 2014). Dr. U.B.Pavanaja conducted the workshop.
Tulu Wikipedia Editathon (co-organized by Karnataka Theological College and CIS-A2K, Mangalore, April 19, 2014). Dr. U.B.Pavanaja conducted the workshop.

Participation in Events

Wikipedia Session for Trainee Journos (organized by Prajavani, Bangalore, April 28, 2014). Dr. U.B.Pavanaja took a session for the trainee journalists of Prajavani Kannada daily on Wikipedia.
World Book Day (organized by Karnataka Publishers’ Association, Indian Institute of World Culture, Basavanagudi, Bangalore, April 23, 2014). Dr. U.B.Pavanaja was a speaker.
Relevance of Bhagabat Tungi in the evolution of Odia language from Buddha era to digital age (organized by The Intellects, Shree Jagannath Mandir and Odisha Art and Cultural Center, New Delhi, April 24, 2014). Subhashish Panigrahi participated in the event.

Media Coverage
CIS gave its inputs to the following media coverage:

M'lore: Wikipedia Workshop held for Konkani writers (Daijiworld, April 6, 2014).
Odia Loves Wikipedia (Rising Voices, April 10, 2014). This was also published in Spanish and in Russian.
International Book Day (The Hindu, April 21, 2014).
Books are a bridge between generations (The Deccan Herald, April 23, 2014).
World Book Day Report (Vijaywani, April 23, 2014).
Seminar on Odia Language in New Delhi by the Intellects (Odisha Samachar, April 24, 2014).
Delhi meet focuses on Bhagabat Tungi revival (The Pioneer, April 26, 2014).

Internet Governance

As part of its research on privacy and free speech, CIS is engaged with two different projects. The first one (under a grant from Privacy International and International Development Research Centre (IDRC)) is on surveillance and freedom of expression (SAFEGUARDS). The second one (under a grant from MacArthur Foundation) is on studying the restrictions placed on freedom of expression online by the Indian government.

NETmundial

As part of its participation in the NETmundial event organized in Brazil by Brazilian Internet Steering Committee in partnership with /1Net at Sao Paulo on April 23 and 24, 2014 CIS produced a total of 16 outputs:

Sumandro Chattapadhyay produced these visual representations: Comparing Appearance of Fifty Most Frequent Words, Contributions by Countries of Origin, Contributions by Types of Organisation, Which Countries Have Not Submitted Contributions to NETmundial?, Which Governments Have Not Submitted Contributions to NETmundial?, Word Clouds of Contributions by Types of Organisation and Tracking *Multistakeholder* across Contributions. Achal Prabhala participated in the event and wrote these: Day 0, Day 1, and Day 2. Transcript of the NETmundial for archival purposes was made available by Pranesh Prakash. Smarika Kumar produced two research outputs: NETmundial and Suggestions for IANA Administration and Accountability of ICANN. Geetha Hariharan wrote two blog posts: Marco Civil da Internet: Brazil’s ‘Internet Constitution’ and Brazil passes Marco Civil; the US-FCC Alters its Stance on Net Neutrality. Jyoti Panday wrote one blog post: NETmundial Roadmap: Defining the Roles of Stakeholders in Multistakeholderism.

Privacy

Analyses

Report of the Group of Experts on Privacy vs. The Leaked 2014 Privacy Bill (by Elonnai Hickok, April 14, 2014).
Banking Policy Guide (by Elonnai Hickok, April 22, 2014).
The Embodiment of the Right to Privacy within Domestic Legislation (by Tanvi Mani, April 29, 2014).

Articles

Who Governs the Internet? Implications for Freedom and National Security (by Sunil Abraham, Yojana, April 4, 2014).
Privacy Law in India: A Muddled Field – I (by Bhairav Acharya, The Hoot, April 15, 2014).
Very Big Brother (by Sunil Abraham, GeneWatch, January – April 2014 Issue).

Blog Entry

South African Protection of Personal Information Act, 2013 (by Divij Joshi, April 16, 2014).

Participation in Events

Milton Wolf Seminar on Media and Diplomacy: The Third Man Theme Revisited: Foreign Policies of the Internet in a Time Of Surveillance and Disclosure (jointly organized by the Center for Global Communication Studies (CGCS) at the University of Pennsylvania’s Annenberg School for Communication, the American Austrian Foundation (AAF), and the Diplomatic Academy of Vienna (DA), Vienna, March 30 – April 1, 2014). Nishant Shah participated in the event as a panelist.
GSMA Partners Meeting (organized by Privacy International, London, April 9, 2014). Elonnai Hickok participated in this meeting.
The Critical Life of Information (organized by Yale University, 100 Wall Street, April 11, 2014). Nishant Shah spoke in the panel on Big Data and Governance. Malavika Jayaram spoke in the panel on Big Data and the Arts.
Round-table on User Safety on the Internet (organized by Consumer Voice and Google, Infantry Road, Bangalore, April 24, 2014).
6th Biannual Surveillance and Society Conference (organized by Eticas Research and Consulting, University of Barcelona and CCCB, April 26 – 24, 2014). Malavika Jayaram gave a talk on “Biometrics in beta: experimenting on a nation (while normalising surveillance for 1.2 billion people)”.

Other

Articles

Between the Local and the Global: Notes Towards Thinking the Nature of Internet Policy (by Nishant Shah, cgcsblog, April 1, 2014).
Networks: What You Don’t See is What You (for)Get (by Nishant Shah, April 17, 2014).

News & Media Coverage

CIS gave its inputs to the following media coverage:

Two Indians in Global Commission on Web Governance (April 1, 2014): Sunil Abraham was named as one of the experts. This was published in Outlook, Economic Times, and in Matters India.
The Take Down of Free Speech Online (Newslaundry, April 1, 2014): CIS research on Intermediary Liabilities is quoted.
The politics of Facebook (by Shweta Tiwari, April 1, 2014).
New privacy Bill more refined & has wider ambit, say experts (by Surabhi Agarwal, Business Standard, April 2, 2014).
Should Nandan Nilekani's Aadhaar project, for identity proof and welfare delivery, exist at all? (by M. Rajshekhar, April 3, 2014).
Lok sabha polls: Social media companies launch special pages for polls (by Varuni Khosla, Economic Times, April 10, 2014).
Parties give short shrift to privacy (by Pratap Vikram Singh, GovernanceNow.com, April 12, 2014).
No party's got a clear stand, Aadhaar's fate hangs in balance (by Pratap Vikram Singh, GovernanceNow.com, April 13, 2014).
'India wants core internet infrastructure' (by Indrani Bagchi, April 24, 2014).
India for inclusive internet governance (by Indrani Bagchi, April 25, 2014).
Facebook launches FB Newswire for journalists; loses part of its immunity under IT Act 2000 (by Amrita Madhukalya, DNA, April 26, 2014).

Digital Humanities

CIS is building research clusters in the field of Digital Humanities. The Digital will be used as a way of unpacking the debates in humanities and social sciences and look at the new frameworks, concepts and ideas that emerge in our engagement with the digital. The clusters aim to produce and document new conversations and debates that shape the contours of Digital Humanities in Asia:

Blog Entries

Confession in the Digital Age (by Rimi Nandy, April 14, 2014).
Animating the Archive – A Survey of Printed Digitized Materials in Bengali and their Use in Higher Education (by Saidul Haque, April 14, 2014).
‘Doing’ Digital Humanities: Reflections on a project on Online Feminism in India (by Sujatha Subramanian, April 14, 2014).
The Machinistic Paradigm Collapse (by Anirudh Sridhar, April 14, 2014).
Exploring the Digital Landscape: An Overview (by P.P.Sneha, April 14, 2014).
Digital Humanities and the Problem of Definition (by P.P.Sneha, April 25, 2014).

Digital Natives

CIS is doing a research project titled “Making Change”. The project will explore new ways of defining, locating, and understanding change in network societies. Having the thought piece 'Whose Change is it Anyway' as an entry point for discussion and reflection, the project will feature profiles, interviews and responses of change-makers to questions around current mechanisms and practices of change in South Asia and South East Asia:

Making Change Project

Blog Entry

Multimedia Storytellers: Panel Discussion (by Denisse Albornoz, April 16, 2014).
From Taboo to Beautiful – Menstrupedia (by Denisse Albornoz, April 30, 2014).

Telecom

CIS is involved in promoting access and accessibility to telecommunications services and resources and has provided inputs to ongoing policy discussions and consultation papers published by TRAI. It has prepared reports on unlicensed spectrum and accessibility of mobile phones for persons with disabilities and also works with the USOF to include funding projects for persons with disabilities in its mandate:

Event Organized

Tech Talk: Landscape of Wireless Communications & Electromagnetic Spectrum (CIS, Bangalore, April 28, 2014). A. Radha Krishna gave a talk on wireless communication technologies.

About CIS

The Centre for Internet and Society is a non-profit research organization that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and IPR reform, and openness (including open government, FOSS, open standards, etc.), and engages in academic research on digital natives and digital humanities.

► Follow us elsewhere

Twitter: https://twitter.com/CISA2K
Facebook group: https://www.facebook.com/cisa2k
Visit us at: https://meta.wikimedia.org/wiki/India_Access_To_Knowledge
E-mail: a2k@cis-india.org

► Support Us

Please help us defend consumer / citizen rights on the Internet! Write a cheque in favour of ‘The Centre for Internet and Society’ and mail it to us at No. 194, 2nd ‘C’ Cross, Domlur, 2nd Stage, Bengaluru – 5600 71.

► Request for Collaboration:
We invite researchers, practitioners, and theoreticians, both organisationally and as individuals, to collaboratively engage with Internet and society and improve our understanding of this new field. To discuss the research collaborations, write to Sunil Abraham, Executive Director, at sunil@cis-india.org or Nishant Shah, Director – Research, at nishant@cis-india.org. To discuss collaborations on Indic language Wikipedia, write to T. Vishnu Vardhan, Programme Director, A2K, at vishnu@cis-india.org.

CIS is grateful to its primary donor the Kusuma Trust founded by Anurag Dikshit and Soma Pujari, philanthropists of Indian origin for its core funding and support for most of its projects. CIS is also grateful to its other donors, Wikimedia Foundation, Ford Foundation, Privacy International, UK, Hans Foundation, MacArthur Foundation, and IDRC for funding its various projects.

For more details visit https://cis-india.org/about/newsletters/april-2014-bulletin

The Embodiment of the Right to Privacy within Domestic Legislation

tanvi — 2014-09-08T02:37:39Z

The Right to Privacy is a pivotal construct, essential to the actualization of justice, fairness and equity within any democratic society. It is an instrument used to secure the boundaries of an individual’s personal space, in his interaction with not only the rest of society but also the State.

It is within this realm of the social transaction that there exists an unending conflict between the Right to Privacy of an individual and the overbearing hand of the State as a facilitator of public interest. This right thus acts as a safety valve providing individuals with a sacred space within which their interactions in their personal capacity have no bearing on their conduct in the public sphere. The preservation of this space is incredibly important in order to ensure a willingness of individuals to engage and cooperate with the State in its fulfillment of public welfare measures that would otherwise be deemed as intrusive. It is in this regard that the Right to Privacy, one of the last sustaining rights that an individual holds against a larger State interest, ought to be protected by the law.

There are numerous dimensions to the idea of the Right to Privacy. These include but are not limited to the privacy of person, privacy of communication, personal privacy, transactional privacy, privacy of information and the privacy of personal data.

The Supreme Court of India has come to the rescue of individuals, time and again by construing "Right to Privacy" as an extension of the Fundamental Right to “Protection of Life and Personal liberty” under Article 21 of the Constitution. This has been reflected in the adjudicatory jurisprudence of the Constitutional courts in the country. However, there exists no Constitutional remedy to redress the breach of privacy by a nongovernmental actor, except under tortuous liability. The power and authority of public and private institutions to use an individual’s personal data for larger interests of national security or effectuation of socio-economic policies is still under extensive scrutiny. It is in this regard that we have compiled a number of sectoral legislations, regulating domains ranging from Finance and Telecom to Healthcare, Freedom of Expression, Consumer rights and Procedural codes. The highlighted provisions under each Act pertain to the mechanisms embodied within the legislation for the regulation of privacy within their respective sectors. Through this we aim to determine the threshold for permissible collection of confidential data and regulatory surveillance, provided a sufficient need for the same has been established. The determination of such a threshold is imperative to formulating a consistent and effective regime of privacy protection in India.

Click to download the below resources:

Legislations
Master Circulars
Finance and Privacy
Code of Civil Procedure and Code of Criminal Procedure
Freedom of Expression
Identity and Privacy
National Security and Privacy
Consumer Protection
Transparency and Privacy
Healthcare
Telecom

Case Laws
Code of Civil Procedure and Code of Criminal Procedure
Freedom of Expression
Identity and Privacy
National Security and Privacy
Consumer Protection
Transparency and Privacy
Healthcare
Telecom

For more details visit https://cis-india.org/internet-governance/blog/the-embodiment-of-right-to-privacy-within-domestic-legislation

Net Neutrality, Free Speech and the Indian Constitution - II

gautam — 2014-04-29T07:42:40Z

In this 3 part series, Gautam Bhatia explores the concept of net neutrality in the context of Indian law and the Indian Constitution.

To sum up the previous post: under Article 12 of the Constitution, fundamental rights can be enforced only against the State, or State-like entities that are under the functional, financial and administrative control of the State. In the context of net neutrality, it is clear that privately-owned ISPs do not meet the exacting standards of Article 12. Nonetheless, we also found that the Indian Supreme Court has held private entities, which do not fall within the contours of Article 12, to an effectively similar standard of obligations under Part III as State organizations in certain cases. Most prominent among these is the case of education: private educational institutions have been required to adhere to standards of equal treatment which are identical in content to Article 14, even though their source lies elsewhere. If, therefore, we are to impose obligations of net neutrality upon private ISPs, a similar argument must be found.

I will suggest that the best hope is by invoking the free speech guarantee of Article 19(1)(a). To understand how an obligation of free speech might operate in this case, let us turn to the case of Marsh v. Alabama, an American Supreme Court case from 1946.

Marsh v. Alabama involved a “company town”. The “town” of Chickasaw was owned by a private company, the Gulf Shipbuilding Corporation. In its structure it resembled a regular township: it had building, streets, a sewage system, and a “business block”, where stores and business places had been rented out to merchants and other service providers. The residents of the “town” used the business block as their shopping center, to get to which they used the company-owned pavement and street. Highway traffic regularly came in through the town, and its facilities were used by wayfarers. As the Court noted:

“In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.”

Marsh, who was a Jehovah’s Witness, arrived in Chickasaw with the intention of distributing religious literature on the streets. She was asked to leave the sidewalk, and on declining, she was arrested by the police, and charged under an anti-trespassing statute. She argued that if the statute was applied to her, it would violate her free speech and freedom of religion rights under the American First Amendment. The lower Courts rejected her argument, holding that since the street was owned by a private corporation, she had no constitutional free speech rights, and the situation was analogous to being invited into a person’s private house. The Supreme Court, however, reversed the lower Courts, and found for Marsh.

Four (connected) strands of reasoning run through the Supreme Court’s (brief) opinion. First, it found that streets, sidewalks and public places have historically been critically important sites for dissemination and reception of news, information and opinions, whether it is through distribution of literature, street-corner oratory, or whatever else. Secondly, it found that private ownership did not carry with it a right to exclusive dominion. Rather, “the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.” Thirdly, it noted that a large number of Americans throughout the United States lived in company towns, and acted just as other American citizens did, in their duties as residents of a community. It would therefore be perverse to deny them rights enjoyed by those who lived in State-municipality run towns. And fourthly, on balance, it held that the private rights of property-owners was subordinate to the right of the people to “enjoy freedom of press and religion.”

No one factor, then, but a combination of factors underlie the Court’s decision to impose constitutional obligations upon a private party. It mattered that, historically, there have been a number of spaces traditionally dedicated to public speech: parks, squares and streets – whose public character remained unchanged despite the nature of ownership. It mattered that individuals had no feasible exit option – that is, no other place they could go to in order to exercise their free speech rights. And it mattered that free speech occupied a significant enough place in the Constitutional scheme so as to override the exclusionary rights that normally tend to go with private property.

The case of the privately-owned street in the privately-owned town presents a striking analogy when we start thinking seriously about net neutrality. First of all, in the digital age, the traditional sites of public discourse – parks, town squares, streets – have been replaced by their digital equivalents. The lonely orator standing on the soap-box in the street corner now tweets his opinions and instagrams his photographs. The street-pamphleteer of yesteryear now updates his Facebook status to reflect his political opinions. Specialty and general-interest blogs constitute a multiplicity of town-squares where a speaker makes his point, and his hearers gather in the comments section to discuss and debate the issue. While these examples may seem frivolous at first blush, the basic point is a serious one: the role of opinion formation and transmission that once served by open, publicly accessible physical infrastructure, held – in a manner of speaking – in public trust by the government, is now served in the digital world, under the control of private gatekeepers. To that extent, it is a public function, undertaken in public interest, as the Court held in Marsh v. Alabama.

The absence of an exit option is equally important. The internet has become not only a space of exchanging information, but it has become a primary – non-replaceable source – of the same. Like the citizens of Chickasaw lacked a feasible alternative space to exercise their public free speech rights (and we operate on the assumption that it would be unreasonably expensive and disruptive for them to move to a different town), there is now no feasible alternative space to the internet, as it exists today, where the main online spaces are owned by private parties, and access to those spaces is determined by gatekeepers – which are the ISPs.

The analogy is not perfect, of course, but there is a case to be made that in acting as the gatekeepers of the internet, privately-owned ISPs are in a position quite similar to the corporate owners of they public streets Company Town.

In the last post, we saw how it is possible – constitutionally – to impose public obligations upon private parties, although the Court has never made its jurisprudential foundation clear. Here, then, is a thought: public obligations ought to be imposed when the private entity is providing a public function and/or when the private entity is in effectively exclusive control of a public good. There is an argument that ISPs satisfy both conditions. Of course, we need to examine in detail how precisely the rights of free expression are implicated in the ISP context. That is the subject for the next post.

For more details visit https://cis-india.org/internet-governance/blog/-neutrality-free-speech-and-the-indian-constitution-part-2

Facebook launches FB Newswire for journalists; loses part of its immunity under IT Act 2000

praskrishna — 2014-05-06T05:41:03Z

A bus accident in California, a fire in New Jersey and another in Vasant Kunj, NASA's successful test flight of its vertical take-off and landing craft, a ceremony to honour the sherpas who died during an avalanche at the Everest last week, and, Israel's suspension of talks with Palestinian authorities. These were some of the news that were disseminated on the first day of Facebook's newest social tool: a newswire to aid journalists and newsrooms.

The article was published in DNA on April 26, 2014. Sunil Abraham is quoted.

In a tie-up with News Corp's Storyful, Facebook launched the Newswire late on Thursday to function as a tool to aid journalists and newsrooms to "find, share and embed newsworthy content from Facebook in the media they produce". Apart from Facebook, the tool is also accessible on twitter at @FBNewswire.

"FB Newswire aggregates newsworthy content shared publicly on Facebook by individuals and organisations across the world for journalists to use in their reporting. This will include original photos, videos and status updates posted by people on the front lines of major events like protests, elections and sporting events," said Andy Mitchell, director of news and global media partnerships at Facebook, via a Facebook blog post.

Facebook has been in the centre of the internet security debate for a while; claiming immunity from legal provisions citing its non-curatorial approach and also denying responsibility for the news the social media network produces. "With the launch of this new tool, Facebook is not only curating information, it also directs knowledge of the content its produces through the newswire. That makes it legally responsible under the Information Technology Act (2000)", says Sunil Abraham, director of the Centre for Internet and Society (CIS).

The move is also seen as Facebook attempting to reach out to journalists, and eat away into the space that Twitter has occupied in the dissemination of information. Facebook has largely been operating as a social media network; and its move into the new-making space is seen as an expansion in that direction.

"There might be some competition for journalists and traditional media outlets. But largely, Facebook's tie-ups with broadcasters and political parties, where it has been promoting content in exchange for compensation, has not been transparent," says Abraham.

With more than a billion users, Facebook is considered the largest social media network. In a statement on April 24, Facebook revealed that more than half of the world's internet population now uses the social media network and recorded a 72% increase in its revenues in the first quarter of the year.

For more details visit https://cis-india.org/news/dna-amrita-madhukalya-april-26-2014-facebook-launches-fb-newswire-for-journalists-loses-part-of-its-immunity-under-it-act-2000

India for inclusive internet governance

praskrishna — 2014-05-05T10:36:52Z

India wants "core internet infrastructure" to be part of an international legal system that would accommodate governments, civil society and other stakeholders. In typical Indian diplomatic style, its position can be interpreted to mean everything and nothing.

The article by Indrani Bagchi published in the Times of India on April 25, 2014 quotes Sunil Abraham.

An MEA team, led by joint secretary Vinay Kwatra, told Net Mundial (forum for internet governance) in Brazil on Thursday, "The elements of India's approach on internet governance respond to its growing complexity and rests in supporting the dynamism, security and openness of a single and unfragmented cyberspace. We also support innovation and robust private sector investment to augment internet's continuing growth and evolution."

The Indian position is essentially an MEA position, because there has been little prior inter-agency consultation in the government. In fact, while the MEA had decided upon its team almost a month ago, the department of information technology woke up only last week. It was on Friday that the nodal ministry for IT-related issues even agreed to send a team to Brazil on Monday- the same team that the MEA was sending. If nothing else, sources said, this only highlighted the lack of seriousness within the Indian system.

Kwatra said internet should have a democratic governing system involving everyone, which would essentially mean creating a parallel international system. While India does not want the status quo to continue, there is no clarity whether it favours a multilateral or a multi-stakeholder system. India, like China, wants a strong state presence in the decision-making process of internet governance because "it is used for transactions of core economic, civil and defence assets at national level and in the process, countries are placing their core national security interests in this medium". On the other hand, it wants unfettered access to knowledge and technology as a nation-building and governance tool.

Additionally, India wants non-governmental stakeholders to be properly audited and a "clear delineation of principles governing their participation, including their accountability, representativeness, transparency and inclusiveness". There is a crying need for India to clearly define the future it expects to thrive in.

Sunil Abhraham of Bangalore-based Centre for Internet and Society says India should take the lead in defining new internet rules, keeping its future in mind. "We could use patent pools and compulsory licensing to provide affordable and innovative digital hardware to the developing world. This would ensure that rights-holders, innovators, manufactures, consumers and government would all benefit ... We could explore flat-fee licensing models like a broadband copyright cess or levy to ensure that users get content at affordable rates and rights-holders get some royalty from all internet users in India. This will go a long way in undermining the copyright enforcement-based censorship regime that has been established by the US. We could enact a world-class privacy law and establish an independent, autonomous and proactive privacy commissioner who will keep both private and state actors on a short lease. We need a scientific, targeted surveillance regime that is in compliance with human rights principles. This will make India simultaneously an IP and privacy haven and thereby attract huge investment from the private sector, and also earn the goodwill of the global civil society and independent media."

This is more than the Indian government has thought of.

While no binding decisions are expected from Brazil this week, the high profile event is expected to trigger a high-level debate on possible reforms. India, say officials, needs to come up with concrete proposals. This is imperative after the US made two crucial decisions on internet governance this year. In March the US announced that by September 2015 it would give up oversight of the Internet Corporation for Assigned Names and Numbers (ICANN), a California-based non-profit group, that assigns domain names. But the US is clear it will not hand over the levers to any organization that can be controlled by any other country. This week, the US' FCC dealt a body blow to the concept of "net neutrality" (which essentially functions on the premise that access to the internet is the same for everyone) by allowing companies like Disney and Google to pay for premium internet speeds.

Countries like China, Russia, Saudi Arabia (may be even Iran) seek to control net access for their citizens as a measure of political control. Second, cyber offensive by countries which are ramping up capacity in these fields could take over internet governance structures if they are not crafted carefully enough. If the US is relinquishing control over ICANN, the next global battle is likely to be over who takes over that mantle. This makes it important to get net governance right. At least China has a plan: It wants the UN to take control. India wants a bit of everything, without actually giving it a shape, making it virtually impossible to shape the debate.

For more details visit https://cis-india.org/news/the-times-of-india-april-25-indrani-bagchi-india-for-inclusive-internet-governance